In Desert Palace, Inc. v. Costa,(1) the Supreme Court addressed the question whether a plaintiff must prove discrimination through direct evidence for the mixed-motives analysis of section 703(m) of Title VII to apply.(2) It held that direct evidence was not necessary and that circumstantial evidence can prove that an adverse employment action was motivated by discrimination. The Court concluded that it
should not depart from the “[c]onventional rul[e] of civil litigation [that] generally appl[ies] in Title VII cases.” ... The reason for treating circumstantial and direct evidence alike is both clear and deep rooted: “Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.”(3)

In July 1992, the Commission issued the Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory (“1992 Enforcement Guidance”) to explain the significance of section 107 of the Civil Rights Act of 1991.(4) It stated that “most appellate court decisions ... since Price Waterhouse have agreed .. . that direct evidence is required for the mixed motives framework to apply.”(5) It also stated that, “[a]s of the date of the drafting of this enforcement guidance, no courts have analyzed whether [section 703(m)] is restricted to direct evidence cases.”(6) Since the issuance of the document, the Supreme Court has analyzed section 703(m) and, as the Costa decision makes clear, determined that direct evidence is not required in mixed-motives cases.

The 1992 Enforcement Guidance’s statements about the need for direct evidence in mixed-motives cases are contrary to the Costa holding and rationale. Those statements, therefore, are no longer in effect.

2. Cases in which the evidence shows that respondent acted on the basis of both lawful and unlawful reasons are known as “mixed-motives” cases.

Section 703(m) provides that:

an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

1. SUBJECT. Revised Enforcement Guidance on Recent
Developments in Disparate Treatment Theory.
2. PURPOSE. This enforcement document is intended to provide
guidance on the evaluation of indirect evidence, direct
evidence and evidence of mixed motives under the disparate
treatment theory of discrimination in light of the Civil
Rights Act of 1991. This document supersedes the Policy
Guidance of March 7, 1991 on Disparate Treatment.
3. EFFECTIVE DATE. 7/14/92.
4. EXPIRATION DATE. As an exception to EEOC Order 205.001,
Appendix B, Attachment 4, § a(5), this Notice will
remain in effect until rescinded or superseded.
5. ORIGINATOR. Title VII/EPA Division, Office of Legal
Counsel.
6. INSTRUCTIONS. File after Section 604 of Volume II of the
Compliance Manual, Theories of Discrimination.
7. SUBJECT MATTER.
I. Introduction
This Enforcement Guidance provides general information on the
evaluation of charges involving circumstantial evidence of
intentional discrimination, and provides detailed guidance, in
light of the 1991 Civil Rights Act and recent case law, on
analyzing charges involving direct evidence of discrimination and
evidence of mixed motives. Section II sets forth general
background information on the standard for finding liability and
the appropriate remedies in charges that involve circumstantial
evidence of discrimination. Section III addresses the evaluation
of charges involving direct evidence: subsection IIIA defines
and describes direct evidence; subsection IIIB explains how
liability is established when direct evidence proves that
discrimination was the sole motive or one of a mixture of motives
for the challenged action; and subsection IIIC discusses the
appropriate remedies to pursue in direct evidence cases. Section
IV discusses whether the mixed motives section of the new Civil
Rights Act applies to affirmative action plans. Finally, section
V outlines the information in the other sections, to provide
guidance for charge processing.1
II. Proving Disparate Treatment Through Circumstantial
Evidence
A. Establishing Liability Through Circumstantial
Evidence
A plaintiff in a Title VII action is not required to provide
direct proof of disparate treatment. United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 714, 31 EPD
Par. 33,477 (1983). In most disparate treatment cases, intent to
discriminate is established inferentially, through circumstantial
evidence. In such cases, the initial step in proving intent is
to make out a prima facie case of discrimination. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53,
25 EPD Par. 31,544 (1981). This simply means that the plaintiff
must provide sufficient evidence from which a legal inference of
discrimination can be drawn; if such inference is left
unexplained, it can be concluded that the adverse action
complained of was more likely than not motivated by unlawful
bias. Teamsters, 431 U.S. at 358.
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 EPD
Par. 8607 (1973), the Supreme Court created a template for
establishing a case by inference. It stated that a plaintiff can
establish a prima facie case of discrimination by showing:
l. (s)he belongs to a protected group under Title VII;
2. (s)he applied and was qualified for a job for which the
employer was seeking applicants;
3. despite his/her qualifications, (s)he was rejected; and
4. after his/her rejection, the position remained open and
the employer continued to seek applications from
persons of complainant's qualifications.
Id. at 802.2
If the plaintiff establishes a prima facie case through the
four-part approach set out in McDonnell Douglas, (s)he will have
raised an inference that the employer acted with a discriminatory
motive.3 This is because, as stated by the Court in Furnco
Construction Co. v. Waters, 438 U.S. 567, 579-580, 17 EPD Par.
8401 (1978), a prima facie showing "is simply proof of actions
taken by the employer from which we infer discriminatory animus
because experience has proved that in the absence of any other
explanation it is more likely than not that those actions were
bottomed on impermissible considerations." But this prima facie
showing only establishes a presumption of discriminatory motive,
which the employer may rebut by articulating a legitimate
nondiscriminatory reason for its action. This burden is
relatively light because all the plaintiff has done in his/her
prima facie case is create an inference through circumstantial
evidence.4 If the defendant succeeds in articulating a
legitimate nondiscriminatory reason for its action, the plaintiff
can prevail by demonstrating that the defendant's articulated
reason was not the true reason for the challenged employment
decision. (S)he may make this showing "either directly by
persuading the court that a discriminatory reason more likely
motivated the employer or indirectly by showing that the
employer's proffered explanation is unworthy of credence."
Aikens, 460 U.S. at 716, quoting Burdine, 450 U.S. at 256.5 The
ultimate "burden of persuasion" rests with the plaintiff.
B. Remedies in Circumstantial Cases
When discrimination is proved through circumstantial evidence, a
full range of remedies is available.6 These remedies include a
commitment by the respondent to cease engaging in the unlawful
discrimination; the posting of notices alerting all respondent's
employees of their right to be free of discrimination; corrective
or preventive action designed to ensure that similar violations
will not recur; nondiscriminatory placement of each identified
victim; expungement of negative comments or adverse actions from
employee's records; back pay for each identified victim; and
attorney's fees. In addition to these remedies, Section 102 of
the 1991 Civil Rights Act, P.L. No. 102-166, 105 Stat. 1071
(1991), provides for the award of compensatory damages for
pecuniary and non-pecuniary losses resulting from the
discrimination, and the award of punitive damages when the
respondent engaged in discrimination "with malice or with
reckless indifference to the federally protected rights of an
aggrieved individual."7
III. Proving Disparate Treatment Through Direct Evidence
A. What is Direct Evidence?
Direct evidence of discriminatory motive may be any written or
verbal policy or statement made by a respondent or respondent
official that on its face demonstrates a bias against a protected
group and is linked to the complained of adverse action. For
example, in Grant v. Hazelett Strip Casting Corp., 880 F.2d
1564, 1569, 51 EPD Par. 39,245 (2d Cir. 1989), the court found
direct evidence of age discrimination where the company president
said in a memo that he wanted a "young man ... between 30 and 40
years old," and verbally that "I want a young man and that's what
I want and that's what I'm going to have." Evidence that an
adverse action was taken on the basis of stereotyped attitudes
about the charging party's class would also constitute direct
evidence of discrimination. As the Supreme Court said in Price
Waterhouse v. Hopkins, 490 U.S. 228, 250, 49 EPD Par. 38,936
(1989), "an employer who acts on the basis of a belief that a
woman cannot be aggressive, or that she must not be, has acted on
the basis of gender." In Grant, 880 F.2d at 1569, the court
found direct evidence of age discrimination in that "the
company's asserted justifications for preferring a younger worker
abound with age stereotypes, such as the belief that older
workers are less productive or would not want [the company's
president] telling them what to do." For a further discussion
of types of direct evidence, see Volume II of the Compliance
Manual, § 604.3(c).
Example 1 - Charging Party (CP) alleges that she was
denied a promotion because of her sex. In particular, she
alleges that she was rejected because the selecting
official believed that her child care responsibilities
would interfere with her ability to work the long hours
required in the new job. CP asserts that she made clear
in her interview that child care would pose no problem.
Two of R's employees testify that they heard the selecting
official say that a woman with young children would not be
able to fulfill the requirements of the job that CP
sought. The investigation further reveals that
no inquiry was made of male applicants as to whether they
had children and, if so, whether their child care
arrangements could accommodate the demands of the job.
In the above example, the evidence that CP's rejection was based
on a stereotyped attitude as to the ability of a woman with young
children to perform a demanding job constitutes direct evidence
of discrimination.
In contrast, direct evidence of bias, standing alone, does not
necessarily prove that a discriminatory motive was responsible
for a particular employment action. As the Supreme Court stated
in Price Waterhouse:
[r]emarks at work that are based on sex stereotypes do not
inevitably prove that gender played a part in a particular
employment decision. The plaintiff must show that the
employer actually relied on her gender in making its
decision.
Price Waterhouse v. Hopkins, 490 U.S. at 251. In other words,
direct evidence of "discrimination in the air" will not by itself
prove discriminatory motive for an action; rather, the
discrimination must be shown to have been "brought to ground and
visited upon an employee." Id. See also Randle v. LaSalle
Telecommunications, Inc., 876 F.2d 563, 569, 50 EPD Par. 39,074
(7th Cir. 1989) (direct evidence must speak not only to intent
but also to the specific employment decision in question).
Thus, a link must be shown between the employer's proven bias
and its adverse action. For example, evidence that the biased
remarks were made by the individual responsible for the adverse
employment decision or by one who was involved in the decision,
along with evidence that the remarks were related to the
decisionmaking process, would be sufficient to establish this
link.8 In Price Waterhouse, the evidence showed that the
employer invited partners to submit comments on the plaintiff
when she was proposed for partnership; some of the comments
stemmed from sex stereotypes; an important part of the decision
whether to promote was an assessment of the submitted comments;
and the employer did not disclaim reliance on the sex-linked
evaluations. 490 U.S. at 232-237. The Court found that this
evidence was sufficient to establish that discrimination infected
the partnership decision. Id. at 250-251.
Accordingly, whenever there is proof of unlawful bias, the
investigator must make a factual determination whether evidence
establishes a link between the proven bias and the adverse action
that is close enough to constitute direct evidence of
discrimination.9 If it is not, the evidence should still be
considered along with any other indirect evidence, and analyzed
under the framework for circumstantial cases.
Example 2 - Respondent (R) supervisor orally states that he
did not hire Charging Party (CP) because she is a woman.
This statement is the clearest example of direct evidence of
discriminatory motive.
Example 3 - CP (female) files a charge with the Commission
alleging that R's dress code discriminates against women.
Specifically, CP claims that R's policy of requiring females
to wear mini skirts is discriminatory and also constitutes
sexual harassment. Records indicate that R has no specific
dress code policy for men in its employ. The Commission'
investigation further reveals that R's dress policy for
women does not have any relationship to its business. This
is an example of direct evidence of discrimination which
manifests itself in the form of an overt policy instituted
and maintained by R.
Example 4 - CP files a charge alleging discriminatory
discharge on the basis of sex (female). In her charge, CP
states that she was told by one of R's supervisors that he
did not think that women could or should perform
construction work and he would never allow a woman to work
for him. CP, however, did not work for this particular
supervisor, and he had no authority over CP regarding her
work with R. The supervisor admits that he made the biased
statement to CP but asserts that the statement was his own
opinion, expressed in a private conversation with CP.
Evidence shows that CP was terminated because of excessive
absenteeism and that she had been treated in the same manner
as other male employees who had similar problems while
working for R. The statement made by R's supervisor would
constitute direct evidence of bias on his part, but since it
neither represented R's policy toward CP or women in
general, nor had an adverse effect on CP's employment, it
would not constitute direct evidence of discriminatory
motive in her discharge.
In the above example, the biased statement may be relevant in
circumstantially showing discriminatory intent and would be
considered with all other available evidence to determine whether
respondent's defenses are pretextual. If, for example, there is
evidence that the employer hires disproportionately few women for
construction jobs and fires a disproportionately large number of
women from such jobs, and there is evidence that the biased
supervisor has some input in all hiring and firing decisions,
this may be sufficient to prove pretext. In addition, if, in the
course of investigating CP's charge, evidence is uncovered
showing that the biased supervisor discriminated against other
women under his authority, the Commission would pursue individual
relief on their behalf and injunctive relief to prevent such
discrimination from reoccurring in the future. (See cases cited
in n. 24, below.)
Example 5 - Same facts as in Example 4, except that CP did
work for the biased supervisor and he decided to fire her
soon after becoming her supervisor. Furthermore, the
supervisor made his comment to CP about women's inability to
perform construction work at the time of the firing. The
supervisor's biased statement is sufficiently linked to the
adverse action as to constitute direct evidence that CP was
unlawfully discharged because of sex.
In the foregoing examples, the supervisors admitted making
the biased statements. Without such an admission, the
investigator would have to determine whether the direct evidence
of discrimination is believable. Like all evidence, its
credibility cannot be presumed but must be evaluated. For
example, if the direct evidence consists solely of CP's statement
that the supervisor said that he would never promote a woman, the
investigator must evaluate the statement for bias, plausibility
and consistency with other available information. Where the
reliability of the direct evidence might be questioned, the
district office should consider whether the case can be analyzed
not only as one involving direct evidence, but also as one of
circumstantial evidence under McDonnell Douglas/Burdine. This
assures that the investigation is complete enough to permit
litigation under an alternative analysis should a court disagree
with the district office's credibility determination.
Example 6 - Charging Party asserts that his supervisor said,
"I didn't promote you to one of the available
'troubleshooter' jobs because clients would not be
comfortable dealing with an Hispanic." Respondent denies
that any such statement was ever made and states that CP's
qualifications were not as good as those of the selectee.
The investigator talks to both the CP and the supervisor
and, based on a credibility determination, concludes that
the CP's version of events is more convincing. Based on the
credible direct evidence, the office can find reasonable
cause.10 However, because a trier of fact might not credit
CP's version of events, it is also necessary to look at the
charge under the McDonnell Douglas/Burdine framework for
circumstantial evidence; i.e., is there evidence that CP is
qualified for a job which was available (yes); if so, has R
articulated a legitimate non-discriminatory reason for its
actions (lesser qualifications); and is there evidence of
pretext (in addition to CP's testimony about the
supervisor's statement, determine, for example, the relative
qualifications of CP and the selectee, and whether there is
evidence concerning numbers of Hispanics in similar jobs or
statements from other witnesses that R is biased against
Hispanics).
B. Establishing Liability Through Direct Evidence
1. Cases Where Discrimination is the Sole Motive
If there is credible direct evidence that discrimination was the
sole motive for an adverse employment action, "cause" should be
found. The complainant in such circumstances is not required to
proceed through the steps of McDonnell Douglas/Burdine.11 Thus,
for example, if a plaintiff who was denied a promotion into upper
management produces credible direct evidence that the promotion
denial was based solely on an explicit policy of excluding women
from upper management positions, she has proved a violation.
Unless the defendant can impeach that evidence, e.g., by proving
that the policy was no longer in effect at the time that the
plaintiff's promotion was considered, or can establish an
affirmative defense,12 liability will be established.
2. "Mixed Motives" Cases
In some cases, the evidence shows that the employer acted on the
basis of both lawful and unlawful reasons. These are known as
"mixed motives" cases. Section 107 of the Civil Rights Act of
1991, Pub. L. No. 102-166, 105 Stat. 1071, adds section 703(m) to
Title VII, to make clear that a Title VII violation is
established
when the complaining party demonstrates that race, color,
religion, sex, or national origin was a motivating factor13
for any employment practice, even though other factors also
motivated that practice.14
The Act reverses the Supreme Court's holding in Price Waterhouse
v. Hopkins,15 490 U.S. 244-45, that an employer can avoid
liability for intentional discrimination in mixed motives cases
if it can demonstrate that it would have made the same decision
in the absence of discrimination.
The Civil Rights Act does not specify the sort of evidence
required to establish that discrimination was a "motivating
factor" in an employment decision. It only states that
complainants must "demonstrate[]" that race, color, religion,
sex, or national origin was a motivating factor, and the term
"demonstrates" is defined in section 104 of the Act as "meets the
burdens of production and persuasion." Though the plurality in
Price Waterhouse did not specify the type of evidence needed for
the mixed motives framework to apply, Justice O'Connor stated, in
her concurrence, that direct evidence is required.16 To date,
most appellate court decisions that have addressed the question
since Price Waterhouse have agreed with Justice O'Connor that
direct evidence is required for the mixed motives framework to
apply.17 Nothing in Section 107 alters this aspect of the
Supreme Court's decision.
As a practical matter, in most cases, direct evidence, as
defined in Section IIIA of this enforcement guidance, will be
needed to establish that both legal and illegal motives were
present. Typically, where the evidence is circumstantial, a mere
inference of discrimination is created, which can be rebutted by
evidence of a legitimate motive. A complaining party will
prevail only if s/he proves that the asserted reason is unworthy
of belief or is a pretext for discrimination. This process helps
to sift through allegations of wrongdoing and defenses of
legitimate motive to determine whether there was discrimination.
On the other hand, direct evidence of discrimination proves that
discrimination was a motivating factor for the challenged action,
without need of the inferences or burden shifting of the
McDonnell-Douglas/Burdine paradigm. Thus, where there is direct
evidence of discrimination, additional proof of a legitimate
motive does not disprove the discriminatory motive; rather, it
shows that a mixture of motives was present.18
Thus, in investigating a mixed motives charge, if there is
credible direct evidence that discrimination was a motivating
factor for the challenged adverse action, Section 107 of the new
Act applies, and "cause" should be found. As set forth in
Section III(C)(2), below, however, the relief due the charging
party will be significantly limited if there is credible evidence
that the respondent would have taken the same action regardless
of the discrimination.
Example 7 - CP alleges that she was not promoted to a
management position because of her sex. The investigator
interviews witnesses who state that a company official who
was influential in evaluating candidates for promotion told
them that he did not believe a woman could effectively
manage men, and that CP was no exception. The investigator
finds no evidence of bias in these witnesses and concludes
that they are credible sources. Respondent is unable to
impeach this direct evidence, but it establishes that CP had
less job-related experience than all the other candidates
for promotion, and that this was a primary factor in the
decision to reject her. The investigator concludes that
discrimination was a motivating factor in denying CP the
promotion. He therefore recommends "cause."19
C. Remedies in Direct Evidence Cases
1. Cases Where Discrimination is the Sole Motive
Where direct evidence proves that discrimination was the sole
motive for an adverse employment action, the complainant is
eligible for the full range of available remedies, as set forth
in Section IIB, above.20
2. "Mixed Motives" Cases
The 1991 Civil Rights Act makes clear that if a complainant
proves that discrimination was a motivating factor for an
employment action, (s)he will, at a minimum, be eligible for
declaratory and injunctive relief, and attorney's fees.21 Thus,
where there is direct evidence that discrimination was a
motivating factor for an employment action, the Commission will
pursue, at a minimum, a commitment by the respondent to cease
engaging in the challenged discrimination,22 the posting of
notices and, if appropriate, attorney's fees.
Once a complainant proves that discrimination was a motivating
factor for an adverse employment action, the burden of proof
shifts to the employer to establish that it would have taken the
same action absent the discrimination. If the employer can make
this showing, the new Act makes clear that it will not be
required to pay compensatory or punitive damages,23 or be subject
to any order requiring admission of the complainant to a union,
reinstatement, hiring, promotion, or payment of back pay.24
Example 8 - CP alleges that he was fired from his salesclerk
position because of his national origin (Iranian). Co-
workers tell the investigator that some customers had
complained to the store manager that the store should not
employ Iranians. Two co-workers further testify that the
manager told them that having an Iranian salesclerk was "bad
for business," and that CP would therefore be let go. This
direct evidence shows that discrimination was a motivating
factor for the firing. R maintains that while the
customers' complaints may have contributed to the decision
to fire CP, the primary reason for his termination was that
it discovered shortly before the termination that CP had
lied about his experience on his employment application.
The investigation bears out R's claim about its discovery of
CP's application falsification. R has an absolute policy of
firing anyone who is discovered to have lied about his
credentials. The investigator concludes that R is liable
for unlawful discrimination, but that it would have taken
the same action in the absence of discrimination. The
investigator therefore determines that "cause" should be
found, but that CP's remedies are limited to declaratory and
injunctive relief, the posting of notices and, if
appropriate, attorney's fees.
To avoid an order requiring reinstatement and the payment of
back pay and damages, the respondent must offer objective
evidence that it would have made the same decision even absent
the discrimination.25 In making this showing, the employer must
produce proof of a legitimate reason for the action that actually
motivated it at the time of the decision. Moreover, a mere
assertion of a legitimate motive, without additional evidence
proving that this motive was a factor in the decision and that it
would independently have produced the same result, would not be
sufficient.26 The employer must prove "that with the
illegitimate factor removed from the calculus, sufficient
business reasons would have induced it to take the same action."
Price Waterhouse, 490 U.S. at 276-77 (O'Connor, J., concurring).
The employer's alleged legitimate explanation for the action will
be undercut if there is evidence that this reason would also have
justified taking the same action against another similarly
situated employee, but the employer declined to do so.
Example 9 - CP alleges that she was denied a promotion due
to sex discrimination. Two co-workers testify that the
selecting official stated to them at the time he was
considering candidates for the promotion that he did not
believe that a woman could effectively perform the duties of
that job. R is unable to refute that testimony, but
establishes that CP had less job experience than the other
candidates. Respondent argues that this legitimate motive
also factored into the promotion denial and would have
induced the selecting official to make the same decision
regardless of the discrimination. However, the investigator
discovers that R has awarded comparable promotions to
individuals with less job-related experience than CP, and
that CP's other qualifications were equal or superior to
those of her competitors. The investigator therefore
concludes that R would not have made the same decision with
regard to CP's promotion in the absence of discrimination,
recommends a cause determination and the full range of
appropriate remedies.
3. Cases Where Evidence of a Legitimate Basis is
Discovered After-the-Fact
In order for a case to be considered one of "mixed motives," to
which Section 107 of the new Act applies, both the legitimate and
discriminatory motives must have been operating at the time of
the decision. If an employer terminates an individual on the
basis of a discriminatory motive, but discovers afterwards a
legitimate basis for the termination, then the legitimate reason
was not a motive for the action. See EEOC v. Alton Packaging,
901 F.2d at 925 (where subsequent to an employer's decision not
to promote plaintiff a candidate with superior qualifications
applied and was selected for the position, the fact that the
plaintiff was less qualified than the selectee could not have
motivated the employer's failure to promote him at the time that
the decision was made).
Nevertheless, if the employer produces proof of a justification
discovered after-the-fact that would have induced it to take the
same action, the employer will be shielded from an order
requiring it to reinstate the complainant or to pay the portion
of back pay accruing after the date that the legitimate basis for
the adverse action was discovered, and the portion of
compensatory damages (in charges based on post-1991 Act conduct)
that would cover losses arising after that date. If the date of
the discovery is unknown, then an appropriate percentage
reduction should be made, based on an assessment of the
approximate date of the discovery.27 Thus, if a complainant is
terminated for discriminatory reasons, but the employer discovers
afterward that she stole from the company, and the employer has
an absolute policy of firing anyone who commits theft, then the
employer would not be required to reinstate the charging party or
to pay compensatory damages for injuries arising after the date
that the theft was discovered, or back pay accruing after that
date. As the Seventh Circuit stated in the context of an ADEA
case in which the plaintiff was discovered, after the allegedly
discriminatory termination, to have falsified his resume, "it
would hardly make sense to order Smith reinstated to a job which
he lied to get and from which he properly could be discharged ...
the same would be true regarding any back pay accumulation after
the fraud was discovered." Smith v. General Scanning, 876 F.2d
at 1319 n.2.28
Under Section 102 of the 1991 Civil Rights Act, a complainant is
entitled to punitive damages if he or she establishes that the
employer engaged in discrimination "with malice or with reckless
indifference to the federally protected rights of an aggrieved
individual." If a complainant makes this showing, but the
employer proves that a lawful reason which actually motivated it
at the time of the decision would have induced it to take the
same action, then the case is one of mixed motives and, according
to Section 107 of the Act, above, punitive damages may not be
awarded.29 However, if the employer's sole motivation was
discriminatory and it acted with "malice or with reckless
indifference" to the victim's rights, proof of an after- the-fact
justification would not shield an employer from an order
requiring it to pay punitive damages.
Example 10 - CP (Hispanic) produces direct evidence that R
refused to hire her for a management position pursuant to a
company policy not to hire or promote any Hispanics for
management positions. R is unable to refute the evidence of
the discriminatory policy, but asserts that CP had lied on
her application when she stated that she had earned a
Masters in Business Administration. The investigation
confirms that CP lied on her application, but that R first
discovered this in the course of gathering information to
respond to the EEOC charge. The Commission, in these
circumstances, would find that R has violated Title VII by
discriminating against CP because of her national origin.
It would seek injunctive and declaratory relief to prevent R
from discriminating in a similar fashion in the future,30
and attorney's fees, if appropriate. The Commission would
also seek back pay accruing prior to the date on which the
application falsification was discovered, and compensatory
damages for any losses that arose prior to that date.31
Punitive damages could be sought if the charge is based on
post-1991 Act conduct and if it is determined that
respondent's conduct was sufficiently egregious to merit
such relief. However, because after-the-fact lawful reasons
would have justified the same action, the Commission will
not pursue reinstatement or the remainder of the back pay or
compensatory damages to which CP would have been entitled
had she not falsified her application. If other individuals
are identified in the course of the investigation who were
qualified for other positions but were denied them because
of their national origin, the Commission would seek, in
addition to the relief described above, other appropriate
relief for those individuals.
IV. Affirmative Action
There have been suggestions that voluntary affirmative action
plans are not lawful under Section 703(m)'s provision that Title
VII is violated whenever race, gender or national origin is a
"motivating factor" in an employment decision. Proponents of
this argument note that, where an employer's selection decision
is made under such a plan, race, gender or national origin are
factors in the decision. Based on the language of the new Act
and its legislative history, however, the Commission has
concluded that the new law does not affect long-standing
principles concerning voluntary affirmative action.
Section 703(m) begins with a qualifying phrase: "Except as
otherwise provided in this title ..." Another provision, Section
116, specifies that:
Nothing in the amendments made by this title shall be
construed to affect court-ordered remedies, affirmative
action, or conciliation agreements, that are in accordance
with the law.
Thus, so long as affirmative action measures comply with the
requirements set forth by the Supreme Court and lower federal
courts, they should not violate Section 107.32
It has been asserted that the "savings" clause of Section 116
only protects court-ordered affirmative action plans, because the
phrase "court-ordered" in the section could be read to modify not
only the word "remedies," but also the phrase "affirmative
action." If the phrase "court-ordered" modifies more than the
word "remedies," however, it would have to modify all three of
the subsequent phrases, including "conciliation agreements."
This interpretation seems unlikely, since conciliation agreements
by definition are not "court-ordered"; rather, they are reached
prior to a lawsuit, in order to avoid litigation. Thus, the
Commission concludes that the phrase "court-ordered" only
modifies "remedies," and does not limit the forms of affirmative
action that the section protects.
Furthermore, the legislative history of the 1991 Act compels the
Commission's interpretation. First, with regard to the "savings"
clause, Senator Robert Dole (R-Ka.) and Representative Henry Hyde
(R-Ill.) submitted statements to the legislative record asserting
that the legislation
makes no change in this area [court-ordered remedies,
affirmative action, conciliation agreements] to Title VII
of the Civil Rights Act of 1964 ...
... In particular, this legislation should in no way be
seen as approval or disapproval of [Weber or Johnson], or
any other judicial decision affecting court-ordered
remedies, affirmative action, or conciliation agreements.
Cong. Rec. S15477-78 (daily ed. Oct. 30, 1991) (statement of Sen.
Dole); Cong. Rec. H9548 (daily ed. Nov. 7, 1991) (statement of
Rep. Hyde). Second, the legislative history makes no mention
that Congress intended to overturn the Supreme Court decisions
upholding the legality of voluntary affirmative action plans,
Steelworkers v. Weber, 443 U.S. 193 (1979), and Johnson v.
Transportation Agency, 480 U.S. 616 (1987).
Finally, with regard to Section 107 of the Act, the mixed
motives section, an interpretive memorandum submitted by
Representative Edwards, chairman of the House subcommittee that
considered H.R.1, a precursor of the final Act, stated:
It is our clear understanding and intent that this section
is not intended to provide an additional method to
challenge affirmative action. As Section 116 of the
legislation makes plain, nothing in this legislation is to
be construed to affect court-ordered remedies, affirmative
action, or conciliation agreements that are otherwise in
accordance with the law. This understanding has been
clear from the time this legislation was first proposed in
1990, and any suggestion to the contrary is flatly wrong.
Cong. Rec. H9529 (daily ed. Nov. 7, 1991) (statement of Rep.
Edwards). In addition, the statements of Senator Dole and
Representative Hyde assert that Section 107 "is equally
applicable to cases involving challenges to unlawful affirmative
action plans, quotas, and other preferences." Cong. Rec. S.15476
(daily ed. Oct. 30, 1991) and H. 9547 (daily ed. Nov. 7, 1991)
(emphasis added). Having explicitly focused on the issue of
affirmative action plans, if there was any intent to apply the
provision to otherwise lawful affirmative action plans, Senator
Dole and Representative Hyde would have said so.33
V. Charge Processing
After gathering all relevant evidence in a charge alleging
intentional discrimination in employment, the investigator should
determine whether there is direct evidence (as defined and
described in section IIIA), above, that discrimination was the
sole motive or one of a mixture of motives for the challenged
action. (Note that this sort of evidence is rare.) If there is
such direct evidence, follow the steps outlined in subsection A,
below. If there is only indirect evidence of discrimination, or
direct evidence of bias without evidence connecting the bias to
the specific challenged action, proceed according to the
McDonnell Douglas framework, as outlined in subsection B, below.
A. Direct Evidence (Section III of this enforcement
guidance):
1. If there is direct evidence that discrimination was
the sole motive for the challenged action, find "cause." See
Section III(B)(1).
a. Pursue a commitment by the respondent
to cease engaging in the proven discriminatory practices; to post
notices; to expunge negative comments or adverse actions from
CP's records; to provide appropriate reinstatement, back pay,
attorney's fees and compensatory damages for all identified
victims if the charge is based on post-1991 Act conduct. If the
conduct was undertaken with malice or reckless indifference to
CP's rights, and if the conduct took place after the 1991 Act,
punitive damages are available.
b. However, if a justification for the
challenged action is discovered by the respondent after-the-fact,
and this justification would have induced the respondent to take
the same action regardless of the discrimination, then the
charging party will not be eligible for reinstatement, back pay
accruing after the date on which the legitimate justification was
discovered, or compensatory damages for losses arising after that
date. If the action was undertaken with malice or reckless
indifference to CP's rights, and if the conduct took place after
the 1991 Act, punitive damages are available. See Section
III(C)(3).
2. Consider whether the evidence shows that
the adverse action was based on both lawful and unlawfulmotives,
and whether the legitimate motive was operating at the time of
the decision.
a. If the legitimate motive was not
operating at the time of the decision, it is an "after-the-fact"
motive. Find "cause," but limit relief as described in
subsection V(A)(1)(b), above.
b. If both motives were operating at the
time of the decision, find "cause." With regard to remedies, do
the following:
1. At a minimum, pursue a
commitment by the Respondent to cease engaging in the challenged
discrimination, post notices advising employees that the
challenged discrimination will not affect employment decisions,
and provide attorney's fees, if appropriate. See Section
III(c)(2).
2. If the legitimate reason would
have induced the respondent to take the same action even in the
absence of discrimination, do not pursue reinstatement, back pay,
or compensatory or damages. Punitive damages also are not
available. See Section III(c)(2).
B. Indirect Evidence (Section II of this enforcement
guidance):
1. Determine whether the evidence supports a prima
facie case of discrimination, as follows:
a. CP belongs to a protected class;
b. CP applied and was qualified for a job
for which the employer was seeking applicants;
c. CP was rejected;
d. After CP's rejection, the position
remained open.
(Note that this framework is not rigid, and
can be adapted appropriately for non-hiring cases.)
2. Determine whether there is evidence of a
legitimate nondiscriminatory reason for the employer's action.
3. If there is evidence of a legitimate
reason, determine whether this reason is in fact a pretext for
discrimination.
4. If there is no evidence of a legitimate
reason, or if a legitimate reason is shown to be pretextual, find
"cause," and pursue remedies, including a commitment by the
respondent to refrain from engaging in future discrimination; to
post notices; to expunge negative comments or adverse actions
from CP's records; to provide appropriate reinstatement, back
pay, attorney's fees, and compensatory damages. If the conduct
was undertaken with malice or reckless indifference to CP's
rights, and if the conduct took place after the 1991 Act,
punitive damages are available.
5. Consider whether this is the unusual case
in which there is evidence of a legitimate basis for the adverse
action that was not known at the time of the decision but that,
had it been known, would have induced the respondent to take the
same action. If so, CP will not be eligible for reinstatement,
back pay accruing after the date that the legitimate
justification was discovered, or compensatory damages for losses
arising after that date. See discussion in Section III(C)(3),
above.
Date: 7/14/92 Approved: -s-
Evan J. Kemp, Jr.
Chairman
1. The material in this Enforcement Guidance is intended to
supplement the general discussion of disparate treatment theory
in Section 604.2 of Volume II of the Compliance Manual (Theories
of Discrimination), pp. 604-4 to 604-5, and the discussion of
direct evidence in Section 604.3(c), pp. 604-11 to 604-13. The
discussion focuses on employers, but is intended to cover all
persons and entities covered by Title VII.
A separate Compliance Manual section on Theories of
Discrimination under the ADEA will be released at a future date.
2. The McDonnell Douglas Court qualified these four elements by
stating that they may vary depending upon the facts in each
case. 411 U.S. at 802 n.13. Similarly, the Court in Burdine
explained that the paradigm set forth in McDonnell Douglas "is
not inflexible" and that "[t]he facts necessarily will vary in
Title VII cases...." 450 U.S. at 253 n.6. Citing McDonnell
Douglas, 411 U.S. at 802 n.13, the Court further stated that the
proof required of a plaintiff under the formula set out in that
case is not "necessarily applicable in every respect in differing
factual situations." Burdine, 450 U.S. at 254 n.6.
The McDonnell Douglas framework, as well as other, substantive
Title VII law applies equally to the federal sector. Morton v.
Mancari, 417 U.S. 536, 7 EPD Par. 9431 (1974).
3. Burdine requires that a plaintiff establish a prima facie case
by a preponderance of the evidence. 450 U.S. at 252-3. The term
"preponderance of the evidence" refers to evidence which is more
convincing than the opposing evidence due to its quality,
reliability and credibility. See Section 604.6 of the Compliance
Manual at 604-19.
4. While the employer's burden is relatively light, its evidence
"must be clear, reasonably specific, and legally sufficient to
justify a judgment for the defendant if not disproved by the
plaintiff." Tye v. Board of Education, Polaris Joint Vocational
School District, 811 F.2d 315, 318, 42 EPD Par. 36,821 (6th
Cir.), cert. denied, 484 U.S. 924, 44 EPD Par. 37,462 (1987),
citing Burdine, 450 U.S. at 255. The employer's proffered reason
for an employment decision must "be sufficient, on its face, to
'rebut' or 'dispel' the inference of discrimination that arises
from proof of the prima facie case." Loeb v. Textron, 600 F.2d
1003, 1011-12 n.5 (1st Cir. 1979).
5. The Supreme Court's statement in Aikens and Burdine is clear:
a plaintiff can prevail either by proving that discrimination
more likely motivated the decision or that the employer's
articulated reason is unworthy of belief. See, e.g., Bruno v.
W.B. Saunders Co., 882 F.2d 760, 766, 51 EPD Par. 39,244 (3d Cir.
1989) (simply disproving defendant's reason is enough), cert.
denied sub nom., CBS, Inc. v. Bruno, 493 U.S. 1062 (1990);
MacDissi v. Valmont Industries, 856 F.2d 1054, 1059, 47 EPD Par.
38,261 (8th Cir. 1988) (once fact finder is persuaded that
proferred reason for challenged action was not the true reason,
plaintiff need not also prove intentional discrimination; such an
approach "unjustifiably multiplies the plaintiff's burden"). See
also EEOC Amicus Brief at 8-19, Hicks v. St. Mary's Honor Center,
No. 91-1571 (8th Cir.) (plaintiff who proves that defendant's
reasons for adverse actions were false has established Title VII
violation), appealing 756 F. Supp. 1244 (E.D. Mo. 1991). Thus,
the Commission disagrees with those courts that have held that it
is not enough to prevail for a plaintiff to disprove the
employer's articulated reason. See, e.g., Galbraith v. Northern
Telecom, 944 F.2d 275, 282-83, 57 EPD Par. 40,956 (6th Cir. 1991)
(proof that employer's explanation for discharge was a
fabrication, and thus a pretext for the true reason, was
insufficient to prove that plaintiff was victim of intentional
discrimination); Mesnick v. General Electric, 950 F.2d 816, 824,
57 EPD Par. 41,143 (1st Cir. 1991) (plaintiff must not only show
that defendant's reason is a sham, but that it is a sham to cover
discrimination).
For a detailed discussion of methods for determining whether
an employer's articulated reason for an action is pretextual, see
Section 604.4 of Volume II of the Compliance Manual, pp. 13 - 19.
6. However, as discussed in section III(C)(3), below, if there is
evidence of a legitimate, nondiscriminatory basis for the
challenged action that was not known at the time of the adverse
decision but that, had it been known, would have induced the
employer to take the same action, then the complainant will not
be eligible for reinstatement, the portion of back pay
accumulating after the date on which the legitimate basis for the
adverse action was discovered, or compensatory damages (in
charges based on conduct post-dating the 1991 Civil Rights Act,
as discussed in n.7, below) for losses arising after that date.
See Summers v. State Farm Mutual Automobile Insurance Co., 864
F.2d 700, 704-705, 48 EPD Par. 38,543 (10th Cir. 1988)
("McDonnell Douglas clearly presupposes a 'legitimate,
nondiscriminatory reason' known to the employer at the time of
the discharge" and does not apply where a legitimate
justification is discovered after-the-fact); Smith v. General
Scanning, Inc., 876 F.2d 1315, 1319, 50 EPD Par. 39,107 (7th Cir.
1989) (plaintiff's resume fraud, discovered after allegedly
discriminatory termination, is not relevant to McDonnell Douglas
formula for determining liability, but would be relevant to
determining appropriate remedies if violation is established).
But see Benson v. Quanex Corp., Daily Lab. Rep. 4/15/92 (E.D.
Mich. 3/24/92) (suit dismissed where after acquired evidence
showed plaintiff would have been discharged even without the
discriminatory motive).
7. For a detailed discussion of the damages provisions in the new
Act, see Enforcement Guidance: Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991
(________, 1992).
The Commission does not apply the damages provisions in the
new Act to charges based on conduct that occurred prior to the
Act's effective date, November 21, 1991. See Policy Guidance on
Application of Damages Provisions of the Civil Rights Act of 1991
to Pending Charges and Pre-Act Conduct (12/27/91).
8. A link between the evidence of bias and the challenged
employment action could also be shown if the biased statements
were made by the decision maker or one who was involved in the
decision, at or around the time that the decision was made, even
if the biased remarks were not specifically related to the
particular employment decision at issue. See, e.g., EEOC v.
Alton Packaging Corp., 901 F.2d 920, 924, 53 EPD Par. 39,932
(11th Cir. 1990) (manager's statement that if it were his
company, "he wouldn't hire any black people" constituted direct
evidence of discrimination in his failure to promote Black
plaintiff; argument that statement related to hiring, and
therefore did not prove discrimination in failure to promote,
rejected); Burns v. Gadsden State Community College, 908 F.2d
1512, 1518 n.9, 54 EPD Par. 40,158 (11th Cir. 1990) (decision
maker's statement that he refused to hire females for an entire
class of positions constituted direct evidence of discrimination
in his refusal to hire female plaintiff for one of the positions
in that class).
9. Direct evidence, then, is not limited to evidence from which
no inferences need be drawn; rather it is evidence that "relates
to actions or statements of an employer reflecting a
discriminatory or retaliatory attitude correlating to the
discrimination or retaliation complained of." Caban-Wheeler v.
Elsea, 904 F.2d 1549, 1555, 54 EPD Par. 40,088 (11th Cir. 1990).
10. However, if R shows that it would have refused CP the job
even absent the discrimination, CP will not be eligible for
reinstatement, back pay or damages. See Section III(C)(2),
below.
11. See TWA v. Thurston, 469 U.S. 111, 121, 35 EPD Par. 34,851
(1985) (ADEA) ("the McDonnell Douglas test is inapplicable where
the plaintiff presents direct evidence of discrimination");
Terbovitz v. Fiscal Court of Adair County, Ky., 825 F.2d 111, 43
EPD Par. 37,288 (6th Cir. 1987) ("[d]irect evidence of
discrimination, if credited by the fact finder, removes the case
from McDonnell Douglas because the plaintiff no longer needs the
inference of discrimination that arises from the prima facie
case"); Bell v. Birmingham Linen Service, 715 F.2d 1552, 1556-57,
32 EPD Par. 33,831 (11th Cir. 1983) ("It should be clear that the
McDonnell Douglas method of proving a prima facie case pertains
primarily, if not exclusively, to situations where direct
evidence of discrimination is lacking"), cert. denied, 467 U.S.
1204, 34 EPD Par. 34,399 (1984); Ramirez v. Sloss, 615 F.2d 163,
168 n.9, 22 EPD Par. 30,802 (5th Cir. 1980) ("In the rare
situation in which the evidence establishes that an employer
openly discriminates against an individual it is not necessary to
apply the mechanical formula of McDonnell Douglas to establish an
inference of intentional discrimination; the showing has already
been made directly").
12. Affirmative defenses under Title VII are set forth in Volume
II of the Compliance Manual, Section 604.10.
13. The phrase "motivating factor" is not defined in the Act. In
Price Waterhouse, the plurality stated:
In saying that gender played a motivating part in an
employment decision, we mean that, if we asked the
employer at the moment of the decision what its reasons
were and if we received a truthful response, one of those
reasons would be that the applicant or employee was a
woman.
490 U.S. at 250 (emphasis added).
14. Although Section 107 does not specify retaliation as a basis
for finding liability whenever it is a motivating factor for an
action, neither does it suggest any basis for deviating from the
Commission's long-standing rule that it will find liability and
pursue injunctive relief whenever retaliation plays any role in
an employment decision. See Volume II of the Compliance Manual,
Section 614.3(3), p. 614-10. The Commission has a unique
interest in protecting the integrity of its investigative
process, and if retaliation were to go unremedied, it would have
a chilling effect upon the willingness of individuals to speak
out against employment discrimination. Id. at Section 614.1(f),
p. 614-7. See also General Telephone Co. of Northwest, Inc. v.
EEOC, 446 U.S. 318, 326, 22 EPD Par. 30,861 (1980) (although the
Commission acts at the behest of the charging party, "it acts
also to vindicate the public interest in preventing employment
discrimination"); EEOC v. Hacienda Hotel, 881 F.2d 1504, 1519, 51
EPD Par. 39,250 (9th Cir. 1989) ("this court has recognized that
EEOC has a right of action that is independent of the employees'
private rights of action ... By seeking injunctive relief, the
EEOC ... seeks to protect aggrieved employees and others
similarly situated from the fear of retaliation for filing Title
VII charges ... [and] 'promotes public policy to vindicate rights
belonging to the United States as a sovereign'"). Thus, the
Commission will find cause when retaliation is a motivating
factor in an employment decision, and evidence showing that the
employer would have taken the same action even absent its
retaliatory motive would pertain only to whether the charging
party is eligible for individual relief. (See Section III(C)(2),
below.)
15. In Price Waterhouse, the plaintiff alleged that her employer
discriminated against her on the basis of sex in its
consideration of her candidacy for partnership. Several partners
had told the firm's Admissions Committee that the plaintiff had
trouble with "interpersonal skills," but the plaintiff proved
that some of the partners reacted negatively towards her because
she was a woman and submitted comments on her candidacy that
stemmed from sex stereotypes.
16. Senator Dole and Congressman Hyde, in submissions to the
Congressional Record, also described the holding in Price
Waterhouse as relying on direct evidence. However, they did not
specify whether direct evidence is required in order for Section
107 of the Act to apply. See 137 Cong. Rec. S15,476 (daily ed.
Oct. 30, 1991) (section-by-section analysis submitted by Senator
Dole); id. at H9547 (daily ed. Nov. 7, 1991) (legislative history
submitted by Representative Hyde).
17. See, e.g., Wilson v. Firestone Tire & Rubber, 932 F.2d 510,
514, 56 EPD Par. 40,858 (6th Cir. 1991) (direct evidence required
for Price Waterhouse mixed motives framework to apply); Jackson
v. Harvard University, 900 F.2d 464, 466, 53 EPD Par. 39,822,
cert. denied 111 S.Ct. 137 (1990) (Price Waterhouse framework
applies where plaintiff provides direct evidence of
discrimination); EEOC v. Alton Packaging Corp., 901 F.2d 920, 925
(same); Gagne v. Northwestern National Insurance Co., 881 F.2d
309, 315, 51 EPD Par. 39,208 (6th Cir. 1989) (same); Grant v.
Hazelett Strip Casting Corp., 880 F.2d at 1568 (same); Jones v.
Gerwens, 874 F.2d 1534, 1539 n.8, 50 EPD Par. 39,089 (11th Cir.
1989) (same). Cf., Tyler v. Bethlehem Steel, ___ F.2d ___, 58
EPD Par. 41,361 (2d Cir. 1992) (in case decided under New York
law, but analyzing Title VII and ADEA by analogy, court, while
rejecting argument that direct evidence was necessary for a
"mixed motive" analysis to apply, acknowledged that the evidence
in the case was "not the stuff of a McDonnell Douglas-Burdine
prima facie case ... Tyler's proof consisted of more than 'stray
remarks,' 'statements by non- decisionmakers,' and evidence
'unrelated to the decisional process ... If there is no 'smoking
gun'... there is at the very least a thick cloud of smoke, which
is certainly enough to require [the employer] to 'convince the
factfinder that, despite the smoke, there is no fire'")
(citations omitted). But see White v. Federal Express Corp., 929
F.2d 157, 160, 56 EPD Par. 40,837 (4th Cir. 1991) (per curiam)
(plaintiff may carry burden in mixed motives case "by any
sufficiently probative direct or indirect evidence").
The Seventh Circuit, in two 1989 cases, held that direct
evidence is required for the Price Waterhouse mixed motives
framework to apply. Holland v. Jefferson National Life
Insurance Co., 883 F.2d 1307, 1313 n.2, 51 EPD Par. 39,287 (7th
Cir. 1989) (same); Lynch v. Belden and Co., Inc., 882
F.2d 262, 269 n.6, 51 EPD Par. 39,248 (7th Cir. 1989)
(same), cert. denied, 110 S. Ct. 1134, 52 EPD Par. 39,634 (1990).
More recently, the en banc court commented that, in applying the
Price Waterhouse framework, "[t]he proverbial "smoking gun" is
not required." It concluded, however, that the plaintiff had
also failed to prove that discrimination was a substantial factor
in the challenged action via circumstantial evidence. Visser v.
Packer Engineering Associates, 924 F.2d 655, 658, 55 EPD Par.
40,578 (7th Cir. 1991) (en banc). This is not a clear statement
of whether the court requires direct evidence in a mixed motive
case, especially because it was not essential to the resolution
of the case. The majority found no evidence, direct or
otherwise, that discrimination played any role in the decision.
One dissenter clearly stated that "one may get into mixed motive
analysis [through] direct or circumstantial evidence". (Cudahy,
J.). However, the other two clearly assumed that direct evidence
was required and gave no hint that -- on that point -- they were
at odds with the majority. (Flaum, J. and Bauer, J.)
18. It is conceivable that a case may arise in which indirect
evidence of an illegitimate motive is so compelling that the
trier of fact is persuaded to apply the mixed motives framework.
However, the few decisions in which the mixed motives framework
has been applied to circumstantial evidence have generally lacked
sound analysis for this approach. As of the date of the drafting
of this enforcement guidance, no courts have analyzed whether
Section 107 of the Civil Rights Act is restricted to direct
evidence cases. For example, in Nichols v. Acme Markets, 712
F. Supp. 488, 51 EPD Par. 39,368 (E.D. Pa. 1989), aff'd mem., 902
F.2d 1558 (3d Cir. 1990), the court applied the Price Waterhouse
framework to a case in which a Black plaintiff was fired after
she punched a customer who had slapped her and made a racial
insult. There was no direct evidence that the firing was on
racial grounds. The employer contended that it terminated her for
assaulting a customer. The ultimate finding of discrimination
was based on the fact that a White co-worker who engaged in far
more violent behavior with less provocation had merely been
suspended. The court applied Price Waterhouse without addressing
the issue of whether direct evidence was necessary. In the
Commission's view, Nichols should have been analyzed under the
traditional McDonnell Douglas/Burdine analysis, i.e., although
hitting customers could be a legitimate motive for firing
someone, the fact that it did not lead to firing a White employee
showed that it was pretextual and that the firing was motivated
by race.
In Tyler v. Bethlehem Steel, discussed in n.17, the Second
Circuit found that the lower court judge had not committed
reversible error when he instructed the jury that if the evidence
gave rise to an inference that age was a motivating factor in the
plaintiff's discharge, then the burden of proof shifted to the
employer to prove that it would have taken the same action
regardless of the discrimination. Although the type of
circumstantial evidence that supports an inference of
discriminatory animus does not shift the burden of proof to the
employer, in this case there was direct evidence of bias by
decision makers, namely that the company was concerned about the
aging of its sales force, and that it valued employees that were
known as "Young Tigers." In the Commission's view,
discrimination would have been found under either the McDonnell-
Douglas or mixed motives analysis. The bottom line was that the
employer's justification of tight economic conditions did not
hold up because CP was soon replaced by a much younger man and
there were several new, young hires. Coupled with the evidence
of bias, this evidence of pretext or of the illegitimacy of the
proffered explanation enabled the plaintiff to prevail. In such
a case, investigators should apply the McDonnell-Douglas/Burdine
framework.
19. However, as discussed in Section III(c)(2), below, the relief
due the charging party will be limited if the investigator
concludes that the respondent would have made the same decision
in the absence of the discrimination.
20. However, as discussed in subsection C(3), below, if the
respondent produces evidence of an after-the-fact justification
that would have induced it to take the same action, the charging
party will not be eligible for reinstatement, back pay accruing
after the date on which the legitimate justification was
discovered, or compensatory damages for losses arising after the
date when the legitimate reason was discovered.
21. The remedies provisions pertaining to mixed motives cases
under the new Act are incorporated in Section 706(g) of Title
VII.
Section 107 of the Act limits the award of attorney's fees to
those that are "directly attributable" to the pursuit of the
mixed motives claim.
22. The Supreme Court has held that injunctive relief is
foreclosed if "there is no reasonable expectation that the wrong
will be repeated," United States v. W.T. Grant, 345 U.S. 629,
633 (1953), or where interim events have "completely and
irrevocably eradicated the effects of the alleged violation."
County of Los Angeles v. Davis, 440 U.S. 625, 631, 19 EPD Par.
9027A (1979). Courts have held that a plaintiff who establishes
a violation of Title VII cannot obtain an injunction if (s)he is
no longer employed by the defendant and does not seek or is not
eligible for reinstatement, because the discrimination cannot
possibly recur and because the plaintiff would not personally
benefit from such relief. See, e.g., Carmichael v. Birmingham
Saw Works, 738 F.2d 1126, 1136, 35 EPD Par. 34,587 (11th Cir.
1984) (injunctive relief inappropriate where Title VII plaintiff
did not seek reinstatement nor showed other way in which he would
personally benefit from injunctive relief); Miller v. Texas State
Board of Barber Examiners, 615 F.2d 650, 654, 22 EPD Par. 30,839
(5th Cir.) (injunction inappropriate where this was not class
action and plaintiff had no possibility of reinstatement), cert.
denied, 449 U.S. 891, 24 EPD Par. 31,256 (1980). If this
approach were applied to post- Civil Rights Act mixed motives
cases, then where a plaintiff establishes that discrimination was
a motivating factor for an employment action, but the employer
proves that it would have taken the same action in the absence of
discrimination, the plaintiff would be ineligible for injunctive
relief because she would not be entitled to reinstatement.
Section 107 would thus lose much of its deterrent effect, since
the plaintiff could only obtain declaratory relief and attorney's
fees in such circumstances.
It is the Commission's view, however, that when it brings suit
on behalf of a charging party and establishes unlawful
discrimination under Section 107, the Commission will usually be
able to obtain injunctive relief even if the charging party is no
longer employed by the respondent. This is because it often
cannot be shown that "there is no reasonable expectation that the
wrong will be repeated." First, if any of the offending parties
remain in the workforce, including those who failed to correct
the discrimination once it was discovered, then the
discrimination might resume. As the D.C. Circuit has stated, a
suit for injunctive relief does not become moot simply because
the offending party has ceased the discrimination, "since the
offending party might be free otherwise to renew that conduct
once the court denied the relief." Bundy v. Jackson 641 F.2d
934, 946 n.13 (D.C. Cir. 1981). Second, others in the
plaintiff's class may have been subjected to discrimination, and
if they are still employed, they could face a recurrence of the
discrimination. Although the plaintiff might not personally
benefit from an injunction when (s)he is no longer in the
workforce, the Commission "acts also to vindicate the public
interest in preventing employment discrimination." General
Telephone Co. of Northwest, 446 U.S. at 326.
23. If the respondent fails to prove that it would have taken the
same action absent the discrimination, but the conduct pre- dated
the 1991 Act, the Commission will not seek compensatory or
punitive damages. See n.7, above.
24. Where discrimination is shown to have been a motivating
factor for an employer's adverse action, but the charging party
is not entitled to reinstatement, back pay or damages because the
employer shows that it would have made the same decision in the
absence of discrimination, the Commission still can pursue such
individual relief for any other discrimination victims who are
identified in the course of the investigation. See EEOC v.
General Telephone Company of the Northwest, Inc., 446 U.S. 318,
331, 22 EPD Par. 30,861 (1980), citing EEOC v. General Electric
Co., 532 F.2d 359, 373, 11 EPD Par. 10,627 (4th Cir. 1976) ("Any
violations that the EEOC ascertains in the course of a reasonable
investigation of the charging party's complaint are actionable");
Sanchez v. Standard Brands, 431 F.2d 455, 2 EPD Par. 10,252 (5th
Cir. 1971) ("the Commission will seek relief from those unlawful
employment practices which are like or related to the charge
filed with the Commission and which grow out of proceedings
before the Commission") (quoting EEOC's amicus brief). See also
Commission's Policy Statement on Enforcement and Relief, dated
February 5, 1985; Commission Decision No. 72-0591, CCH EEOC
Decisions (1973) Par. 6314.
25. See Price Waterhouse, 490 U.S. at 252 ("[I]n most cases,
the employer should be able to present some objective evidence as
to its probable decision in the absence of an impermissible
motive").
26. Cf., Hopkins v. Price Waterhouse (on remand from Supreme
Court), 53 EPD Par. 39,922 (D.C.D.C. 1990), aff'd, 920 F.2d 967,
972-74, 55 EPD Par. 40,413 (D.C. Cir. 1991) (violation found
where employer failed to present evidence separating
discriminatory and non-discriminatory motives and proving that
non-discriminatory motive would have induced same decision).
27. In Milligan-Jensen v. Michigan Technological Univ., 767 F.
Supp. 1403 (W.D. Mich. 1991), the plaintiff produced direct
evidence that the defendant discriminated against her on the
basis of sex in her employment and in its decision to dismiss
her. However, after the termination, the defendant discovered
that the plaintiff had made a material fabrication on her
employment application that would have justified the dismissal.
The court ruled that the application falsification did not bar
all relief to plaintiff, but did justify an appropriate
limitation of back pay and elimination of front pay. The court
decided that it would be futile to guess when the defendant had
discovered the falsification, and therefore decided instead to
reduce the back pay by fifty percent. See also Smith v. General
Scanning, 876 F.2d at 1319 n.2 (where plaintiff's resume
falsification was discovered after termination, it would not make
sense to award back pay accumulating after the fraud was
discovered). But see cases discussed in n.28, below.
28. Some courts seem to have denied all monetary relief where an
after-the-fact justification for the action was discovered. See,
e.g., Summers v. State Farm Mutual Automobile Insurance Co., 864
F.2d 700, 705 (plaintiff ineligible for relief where evidence
that he falsified numerous company records was discovered after
termination); Smallwood v. United Air Lines, Inc., 728 F.2d 614,
33 EPD Par. 34,185 (4th Cir.), cert. denied, 469 U.S. 832,
35 EPD Par. 34,663 (1984) (while the airline's policy of not
processing applications of persons over age 35 for the position
of flight officer was a violation of the ADEA, the airline was
not compelled to grant full relief to the plaintiff, since the
airline proved that had it considered plaintiff's application, it
would not have hired him on the basis of other lawful reasons);
Benson v. Quanex Corp., Daily Lab. Rep. 4/15/92 (E.D. Mich.
3/24/92) (suit dismissed where after-acquired evidence showed
plaintiff would have been discharged even without the
discriminatory motive); Churchman v. Pinkerton's, Inc., 756 F.
Supp. 515, 56 EPD Par. 40,742 (D. Kan. 1991) (plaintiff
ineligible for relief on claim of constructive discharge due to
harassment where "after-acquired evidence," in form of material
omission on her employment application forms, would have resulted
in employer's discharge of her or refusal to hire her); Mathis
v. Boeing Military Airplane Co., 719 F. Supp. 991, 994-5, 51 EPD
Par. 39,347 (D. Kan. 1989) (material omissions on plaintiff's
employment application discovered after termination preclude
relief on her Title VII claims).
The court in Milligan-Jensen, discussed in n.27, above,
distinguished Summers, Churchman and Mathis on the grounds that
in each of those cases, no discrimination had been established.
The Commission agrees with the approach taken in Milligan-Jensen.
29. The complainant will also be ineligible for compensatory
damages, back pay and reinstatement. See Section III(c)(2),
above.
30. Such relief might include requiring the respondent to: (i)
post a notice advising its employees that national origin will
not affect its employment decisions and, specifically, that
national origin will not be taken into account in making
promotions; and (ii) counsel and/or discipline the offending
officials and agree not to consider national origin in making
promotions.
31. If the exact date of the discovery cannot be discerned, an
appropriate percentage reduction should be made based on an
assessment of the approximate date of the discovery.
32. The argument has been put forth that Section 116 protects
only those affirmative action measures that "are in accordance
with [Title VII]" as it has been amended by the new Civil Rights
Act. Under this interpretation, Section 116 would not protect
affirmative action plans if they violate Section 107. This
interpretation seems unlikely: for if Section 116 saves only
those affirmative action measures that are consistent with the
new amendments, then it in fact saves nothing at all, and is
rendered useless. For the section to serve any purpose, it would
have to be read to protect affirmative action plans that are in
accordance with the law as it exists without reference to Section
107. Officers for Justice v. Civil Service Commission of the
City and County of San Francisco, et al, No. C-73-0657 RFP and C-
77-2884 RFP (N.D. Cal. March 3, 1992) (1992 U.S. Dist. LEXIS
3098).
33. It is the Commission's view that its Guidelines on
Affirmative Action, at 29 CFR 1608 (1979), have not been affected
by the new Act.